Russ Lee Masuno v. Nancy A. Berryhill, No. 8:2018cv00228 - Document 16 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (see document for further information) (hr)
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Russ Lee Masuno v. Nancy A. Berryhill Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 RUSS LEE MASUNO, 12 13 14 15 16 17 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 18 19 20 21 22 23 24 25 26 27 ) Case No. 8:18-cv-00228-JDE ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) ) Plaintiff Russ Lee Masuno (“Plaintiff”) filed a Complaint on February 8, 2018, seeking review of the Commissioner’s denial of his application for disability insurance benefits (“DIB”). The parties filed a Joint Submission (“Jt. Stip.”) regarding the issues in dispute on September 18, 2018. The matter now is ready for decision. I. BACKGROUND Plaintiff filed his application for DIB on November 18, 2014, alleging disability commencing on February 21, 2014. Administrative Record (“AR”) 28 Dockets.Justia.com 1 139-42. On June 7, 2017, Plaintiff, represented by counsel, appeared and 2 testified at a hearing before an Administrative Law Judge (“ALJ”). AR 33-69. 3 On June 27, 2017, the ALJ issued a written decision finding Plaintiff was not 4 disabled. AR 15-26. The ALJ found Plaintiff had not engaged in substantial 5 gainful employment since February 21, 2014 and suffered from the following 6 severe impairments: depressive disorder, not otherwise specified; anxiety 7 disorder; and history of alcohol dependence in recent remission. AR 17. The 8 ALJ also found Plaintiff did not have an impairment or combination of 9 impairments that met or medically equaled a listed impairment and had the 10 residual functional capacity (“RFC”) to perform a full range of work, limited 11 as follows: “[Plaintiff] is limited to simple repetitive tasks with frequent 12 interactions with supervisors, occasional interactions with coworkers[,] and 13 minimal public contact; he requires additional supervision once every 45 days 14 for these simple repetitive tasks; and he is like[ly] to miss work one day every 15 45 to 60 days.” AR 18-19. 16 The ALJ determined Plaintiff was unable to perform his past relevant 17 work as a software engineer. AR 24. Considering Plaintiff’s RFC, age, 18 education, work experience in conjunction with the Medical-Vocational 19 Guidelines, and the VE’s testimony, which included an opinion that Plaintiff 20 could perform the requirements of “hundreds of thousands of unskilled 21 representative occupations in the national economy,” the ALJ concluded he 22 was capable of performing work that exists in significant numbers in the 23 national economy. AR 25. Accordingly, the ALJ concluded that Plaintiff was 24 not under a “disability,” as defined in the Social Security Act, from the alleged 25 onset date through the date of the decision. AR 25. 26 Plaintiff’s request for review of the ALJ’s decision by the Appeals 27 Council was denied, making the ALJ’s decision the Commissioner’s final 28 decision. AR 1-6. This action followed. 2 1 II. 2 LEGAL STANDARDS 3 A. Standard of Review 4 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s 5 decision to deny benefits. The ALJ’s findings and decision should be upheld if 6 they are free from legal error and supported by substantial evidence based on 7 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 8 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 9 Substantial evidence means such relevant evidence as a reasonable person 10 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 11 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a 12 preponderance. Id. To determine whether substantial evidence supports a 13 finding, the reviewing court “must review the administrative record as a whole, 14 weighing both the evidence that supports and the evidence that detracts from 15 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th 16 Cir. 1998). “If the evidence can reasonably support either affirming or 17 reversing,” the reviewing court “may not substitute its judgment” for that of 18 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 19 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are 21 supported by inferences reasonably drawn from the record.”). 22 Lastly, even if an ALJ errs, the decision will be affirmed where that error 23 is harmless. Id. at 1115. An error is harmless if it is “inconsequential to the 24 ultimate nondisability determination,” or if “the agency’s path may reasonably 25 be discerned, even if the agency explains its decision with less than ideal 26 clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted). 27 // 28 // 3 1 2 B. Standard for Determining Disability Benefits When the claimant’s case has proceeded to consideration by an ALJ, the 3 ALJ conducts a five-step sequential evaluation to determine at each step if the 4 claimant is or is not disabled. See Molina, 674 F.3d at 1110. 5 First, the ALJ considers whether the claimant currently works at a job 6 that meets the criteria for “substantial gainful activity.” Id. If not, the ALJ 7 proceeds to a second step to determine whether the claimant has a “severe” 8 medically determinable physical or mental impairment or combination of 9 impairments that has lasted for more than twelve months. Id. If so, the ALJ 10 proceeds to a third step to determine whether the claimant’s impairments 11 render the claimant disabled because they “meet or equal” any of the “listed 12 impairments” set forth in the Social Security regulations at 20 C.F.R. Part 404, 13 Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 14 996, 1001 (9th Cir. 2015). 15 If the claimant’s impairments do not meet or equal a “listed 16 impairment,” before proceeding to the fourth step the ALJ assesses the 17 claimant’s RFC, that is, what the claimant can do on a sustained basis despite 18 the limitations from his impairments. See 20 C.F.R. §§ 404.1520(a)(4), 19 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p. After determining the 20 claimant’s RFC, the ALJ proceeds to the fourth step and determines whether 21 the claimant has the RFC to perform his past relevant work, either as he 22 “actually” performed it when he worked in the past, or as that same job is 23 “generally” performed in the national economy. See Stacy v. Colvin, 825 F.3d 24 563, 569 (9th Cir. 2016). 25 If the claimant cannot perform his past relevant work, the ALJ proceeds 26 to a fifth and final step to determine whether there is any other work, in light of 27 the claimant’s RFC, age, education, and work experience, that the claimant 28 can perform and that exists in “significant numbers” in either the national or 4 1 regional economies. See Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 2 1999). If the claimant can do other work, he or she is not disabled; but if the 3 claimant cannot do other work and meets the duration requirement, the 4 claimant is disabled. See Id. at 1099. The claimant generally bears the burden at each of steps one through 5 6 four to show he or she is disabled, or he or she meets the requirements to 7 proceed to the next step; and the claimant bears the ultimate burden to show 8 he or she is disabled. See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 9 60 F.3d 1428, 1432 (9th Cir. 1995). However, at Step Five, the ALJ has a 10 “limited” burden of production to identify representative jobs that the claimant 11 can perform and that exist in “significant” numbers in the economy. See Hill v. 12 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 13 III. 14 DISCUSSION 15 The parties present two disputed issues (Jt. Stip. at 4): 16 Issue No. 1: Whether the RFC lacks substantial evidence because the 17 ALJ improperly rejected the opinions of Plaintiff’s treating psychiatrist and 18 therapist; and Issue No. 2: Whether the ALJ properly considered Plaintiff’s subjective 19 20 complaints. 21 A. 22 Medical Opinion Evidence 1. Applicable Law 23 In determining a claimant’s RFC, an ALJ must consider all relevant 24 evidence in the record, including medical records, lay evidence, and “the 25 effects of symptoms, including pain, that are reasonably attributable to the 26 medical condition.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 27 2006) (citation omitted). 28 // 5 1 “There are three types of medical opinions in social security cases: those 2 from treating physicians, examining physicians, and non-examining 3 physicians.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th 4 Cir. 2009). “As a general rule, more weight should be given to the opinion of a 5 treating source than to the opinion of doctors who do not treat the claimant.” 6 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The opinion of an 7 examining physician is, in turn, entitled to greater weight than the opinion of a 8 nonexamining physician.” Id. “[T]he ALJ may only reject a treating or 9 examining physician’s uncontradicted medical opinion based on clear and 10 convincing reasons” supported by substantial evidence in the record. 11 Carmickle v. Comm’r Sec. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 12 (citation omitted). “Where such an opinion is contradicted, however, it may be 13 rejected for specific and legitimate reasons that are supported by substantial 14 evidence in the record.” Id. at 1164 (citation omitted). 15 Plaintiff concedes Ms. Middleton, licensed marriage and family therapist 16 (“LMFT”), “is not an acceptable medical source.” Jt. Stip. at 7. Such “other 17 sources” are not entitled to the same deference as a medically acceptable 18 treating source. Molina, 674 F.3d at 1111. An ALJ may discount opinions of 19 these “other sources” if the ALJ “gives reasons germane to each witness for 20 doing so.” Id. (internal quotation marks and citations omitted); Villafan v. 21 Comm’r Soc. Sec., 2018 WL 2734914, at *14 (E.D. Cal. June 5, 2018) 22 (LMFTs are not an acceptable medical source; they are considered an “other 23 source” for which the ALJ must give reasons germane to the source in 24 discounting their assessment). 25 26 a. Analysis: Doctor Litzinger Dr. Jeffrey D. Litzinger is one of Plaintiff’s treating psychiatrists. He 27 completed treatment notes following a March 2, 2016 office visit noting that 28 Plaintiff’s mood was depressed, and his affect was restless and fidgety. AR 373. 6 1 Dr. Litzinger also noted Plaintiff’s thought process was logical, linear, and goal 2 directed, but that he was distracted. Id. His thought content showed no 3 suicidal or homicidal ideation, and he exhibited no evidence of psychosis. Id. 4 Plaintiff’s cognition decreased his short term memory and he showed poor 5 concentration, but his insight and judgment were fair to good. Id. Dr. Litzinger 6 diagnosed Plaintiff with major depressive disorder, anxiety disorder, and 7 agoraphobia without panic disorder. Id. He also assessed Plaintiff with alcohol 8 dependency, “likely” ADHD, and past polysubstance use. Id. In Dr. 9 Litzinger’s “Procedures Notes,” he opined Plaintiff was moderately limited in: 10 (1) completion of complex tasks; (2) sustained ability to complete simple tasks; 11 and (3) interaction with others. AR 374. He also opined that Plaintiff was 12 moderately to severely limited in his ability to maintain a schedule, and 13 severely limited in his ability to take direction from supervisors. Id. 14 The ALJ set forth a detailed summary of Dr. Litzinger’s treatment notes, 15 and then discounted the doctor’s opinion about the more severe limitations 16 because: (1) Plaintiff failed to comply with treatment recommendations; (2) 17 mental status findings conflicted with restrictive limitations; and (3) Plaintiff 18 acknowledged a more moderate condition. AR 25, 374. 19 20 Plaintiff contends that the ALJ failed to articulate legally sufficient reasons for rejecting the opinion. Jt. Stip. at 5-8, 14-16. 21 Preliminarily, the Court notes the ALJ did not reject Dr. Litzinger’s 22 opinion in its entirety. The ALJ partially credited the opinion, finding it by and 23 large “not inconsistent with [Plaintiff’s] longstanding history of treatment for 24 depression and anxiety disorder.” AR 22. Then, in fashioning the RFC, the 25 ALJ took Plaintiff’s mental limitations into account by restricting Plaintiff to 26 simple and repetitive tasks, limiting his interaction with coworkers and the 27 public, requiring additional supervision, and allotting for missed work every 45 28 to 60 days. AR 19. Moreover, in finding Plaintiff could perform jobs that exist 7 1 in significant numbers in the national economy, the ALJ took into account 2 Plaintiff’s ability to perform work at all exertional levels was “compromised by 3 [his] nonexertional limitations,” and limited Plaintiff to unskilled jobs. AR 25. 4 To the extent the ALJ declined to accept the more severe limitations outlined 5 by Dr. Litzinger, those reasons are supported by the record. 6 First, the ALJ noted Dr. Litzinger’s treatment records indicated Plaintiff 7 continued to drink alcohol while taking Effexor1 despite medical instructions 8 to the contrary. AR 22. For example, the doctor’s notes indicated that: (1) he 9 instructed Plaintiff to strive for abstinence (AR 374, 377, 383); (2) Plaintiff 10 “went off his medications . . . because he started drinking again and thought he 11 couldn’t take [them] with [alcohol]”; (3) after restarting Effexor, Plaintiff stated 12 he continued to “drink[] about 3 shots ‘if he has to force himself to do 13 something,’” and he uses alcohol “as an excuse” (AR 375, 378); (4) Plaintiff 14 was prescribed Effexor but was not taking it when he reported drinking four to 15 five shots of hard liquor in the morning (AR 382); (5) if he has to go out, 16 Plaintiff reported having a couple of more shots (AR 382). Despite these 17 notations, nothing in Dr. Litzinger’s opinion addressed the impact of Plaintiff’s 18 alcohol use and failure to follow treatment advice on the doctor’s findings, 19 such as how long Plaintiff would remain functionally impaired or whether 20 Plaintiff would remain functionally impaired if he stopped using alcohol. AR 21 22. The ALJ could properly consider this conflict and omission in the doctor’s 22 treatment notes. See Wilhelm v. Comm’r Soc. Sec. Admin., 597 F. App’x 425, 23 425 (9th Cir. 2015) (ALJ properly rejected doctor’s opinion because it 24 contradicted her own treatment notes); Shavin v. Comm’r Soc. Sec. Admin., 25 488 F. App’x 223, 224 (9th Cir. 2012) (ALJ may reject physician’s opinion by 26 27 28 1 “Effexor (Venlafaxine) is used to treat depression, anxiety disorder, and panic disorder.” Ryan v. Comm’r Soc. Sec., 528 F.3d 1194, 1202 n.1 (9th Cir. 2008). 8 1 “noting legitimate inconsistencies and ambiguities in the doctor’s analysis or 2 conflicting lab test results, reports, or testimony” (internal citation omitted)); 3 see also Parra, 481 F.3d at 748 (claimant bears the burden of proving that drug 4 addiction and alcoholism are not contributing factors material to his or her 5 disability, in that he or she would remain disabled if the drug and alcohol 6 substance abuse ceased); 20 C.F.R. §§ 404.1530, 416.930 (claimants must 7 “follow treatment prescribed by [their] medical source(s) if this treatment is 8 expected to restore [their] ability to work”). 9 Second, the ALJ noted that Dr. Litzinger’s mental status examination 10 showed no evidence of psychosis. AR 22, 373, 383. This was consistent with 11 other evidence in the record. For example, in December 2016, after Plaintiff 12 achieved sobriety, treating neurologist Dr. Omid Omidvar found Plaintiff to be 13 normal on mental status examination. AR 22, 404-05. Other records also 14 showed improvement in Plaintiff’s condition with abstinence and compliance 15 with treatment. AR 20, 325-28. The ALJ was permitted to reject an opinion 16 that is unsupported by the record as a whole, and inconsistent with Dr. 17 Litzinger’s own findings. Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 18 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) 19 (“The ALJ need not accept the opinion of any physician, including a treating 20 physician, if that opinion is . . . inadequately supported by clinical findings.”); 21 Wilhelm, 597 F. App’x at 425); Shavin, 488 F. App’x at 224 (9th Cir. 2012). 22 Third, the ALJ noted Plaintiff acknowledged to Dr. Litzinger that his 23 depression was generally moderate, and that he was not crying as much. AR 24 22, 372 (depression “6-7/10”), 375, 381 (depression improved with 25 medication, “5/10”). This also conflicted with Dr. Litzinger’s severe findings. 26 See Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) 27 (an ALJ may properly reject limitations recommended by a physician that 28 conflict or are inconsistent with the claimant’s own statements); Hoopai v. 9 1 Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007) (explaining the Ninth Circuit has 2 not “held mild or moderate depression to be a sufficiently severe non- 3 exertional limitation that significantly limits a claimant’s ability to do work 4 beyond the exertional limitation.”); Satrom v. Astrue, 2011 WL 2633876, at *4 5 (E.D. Wash. July 1, 2011) (“Because the ALJ found [examining 6 psychologist]’s report inconsistent with the record as a whole, inconsistent with 7 [claimant]’s statements[,] and inconsistent with itself, substantial evidence 8 supports the ALJ’s decision to give no weight to [psychologist]’s report[.]”) 9 Accordingly, the ALJ provided valid reasons for rejecting the severe 10 limitations outlined in Dr. Litzinger’s opinion, and the ALJ’s analysis 11 constituted a rational interpretation of the evidence. See Gallant v. Heckler, 12 753 F.2d 1450, 1453 (9th Cir. 1984) (“Where evidence is susceptible of more 13 than one rational interpretation, it is the ALJ’s conclusion which must be 14 upheld.”). The Court finds the ALJ did not err by only partially crediting Dr. 15 Litzinger’s opinion. Accordingly, reversal is not warranted. 16 b. Analysis: LMFT Elizabeth Middleton 17 Elizabeth Middleton served as Plaintiff’s therapist, and her treatment 18 notes span several months in 2014. AR 21. The notes opine that Plaintiff is 19 unable to do even basic activities of daily living such as opening his mail, 20 answering calls, changing clothes, and cleaning his home. AR 21. Ms. 21 Middleton also completed a one-page, “Mental Capacity Questionnaire” in 22 September 2014. AR 234. She opined Plaintiff could not perform simple, 23 repetitive tasks, and he does not have the capacity to work eight hours per day, 24 40 hours per week, 50 weeks per year. Id. Additionally, Ms. Middleton 25 completed a third-party Adult Function report in April 14, 2015, indicating 26 Plaintiff had significant difficulties with basic daily functioning due to his 27 mental health issues. AR 23, 186-94. 28 Ms. Middleton also testified at the administrative hearing about 10 1 Plaintiff’s limitations. AR 40-47. She explained Plaintiff is a high risk for 2 suicide. AR 41. She said his depression and alcoholism go “hand-in-hand,” 3 and when he stops drinking his problems with forgetfulness, organization, and 4 depression improve. AR 43, 45-46. She also described that she helps him by 5 organizing his paperwork, preparing “trial binders,” setting up online 6 payments, calling the “disability number” when he forgets, and generally 7 helping him with his claim. AR 42-44. 8 The ALJ set forth a detailed summary of Ms. Middleton’s notes, 9 questionnaire, and testimony. AR 21. The ALJ assigned “no weight” to Ms. 10 Middleton’s conclusion in the Mental Capacity Questionnaire that Plaintiff 11 could not work a normal workday because: (1) it was inconsistent with benign 12 mental status examination findings; (2) she relied heavily on Plaintiff’s 13 subjective claims; and (3) the opinion did not address the impact of Plaintiff’s 14 ongoing alcohol abuse and noncompliance with treatment on his ability to 15 function and benefit from treatment. AR 21. The ALJ assigned some, but not 16 significant, weight to Ms. Middleton’s third-party questionnaire and testimony 17 because: (1) they conflicted with the objective evidence and observations of 18 doctors; (2) they conflicted with Plaintiff’s daily activities; and (3) she became 19 closely involved in Plaintiff’s personal affairs. AR 23-24. Plaintiff concedes Ms. Middleton, as an LMFT, is not an acceptable 20 21 medical source. Jt. Stip. at 7. Nonetheless, he contends her opinions are 22 consistent with the longitudinal treatment record, and the ALJ failed to 23 articulate germane reasons in finding her opinions unpersuasive. Jt. Stip. at 7- 24 8, 14-16. The Court has already discussed the ALJ’s reasoning regarding the lack 25 26 of a discussion of the impact of Plaintiff’s ongoing alcohol abuse and 27 noncompliance with treatment on his ability to function and benefit from 28 // 11 1 treatment in addressing Dr. Litzinger’s opinion above. 2 Having met the higher, 2 specific-and-legitimate standard for contradicted opinions, the Court finds the 3 ALJ’s reasoning also meets the lesser, germane-reason standard for LMFTs. 4 Molina, 674 F.3d at 1111; Villafan, 2018 WL 2734914 at *14 (ALJ provided 5 germane reasons to reject LMFT’s opinion because the reasons satisfied the 6 specific and legitimate standard for rejecting doctor’s opinion). 7 The Court has also already discussed the conflict between severe 8 limitations and the objective mental status findings. Ms. Middleton’s opinion 9 conflicts with the findings discussed above, and others detailed by the ALJ. AR 10 21-22, 72, 74-77, 325-28, 347-48, 404-05. This is a germane reason for 11 discounting Ms. Middleton’s opinion. See Molina, 674 F.3d at 1111; Batson, 12 359 F.3d at 1195; Thomas, 278 F.3d at 957; Satrom, 2011 WL 2633876 at *4; 13 Villafan, 2018 WL 2734914 at *14. 14 15 16 The remaining reasons outlined by the ALJ are also germane and supported by substantial evidence in the record. First, the ALJ properly determined Ms. Middleton’s opinion in the 17 Mental Capacity Questionnaire relied heavily on Plaintiff’s subjective 18 complaints. AR 21. For example, in the section of the questionnaire requesting 19 a description of the “objective and clinical findings” supporting the opinion, 20 Ms. Middleton primarily summarized Plaintiff’s social history, subjective 21 complaints, and personal feelings of shame in being on disability. AR 234. As 22 explained in the Court’s analysis of Disputed Issue No. 2, below, the ALJ 23 24 25 26 27 28 2 Ms. Middleton testified at the hearing that Plaintiff’s depression improved when he was not drinking. AR 43, 46. But the ALJ was clear his reasoning applied only to Ms. Middleton’s questionnaire. AR 21. Regardless, Ms. Middleton’s terse testimony about Plaintiff’s alcoholism was still devoid of details of his failure to follow treatment advice and how long Plaintiff would remain functionally impaired if he stopped using alcohol. AR 44-46. 12 1 properly discounted Plaintiff’s subjective complains. Accordingly, this is a 2 germane reason supported by the record. See, e.g., Calkins v. Astrue, 384 F. 3 App’x 613, 614 (9th Cir. 2010) (doctor appeared to rely to a significant extent 4 on claimant’s subjective reporting because it was unlikely opinion could be 5 based on relatively superficial testing); Morgan, 169 F.3d at 602 (disability 6 opinion “premised to a large extent upon the claimant’s own accounts of his 7 symptoms and limitations may be disregarded where those complaints have 8 been properly discounted” (quotations omitted)); Andrews v. Shalala, 53 F.3d 9 1035, 1041 (9th Cir. 1995) (same). 10 Second, the ALJ properly reasoned that Plaintiff reported a history of 11 performing activities of daily living and social interactions that are “greatly 12 above” the level of functioning described by Ms. Middleton.3 AR 23; see 13 Doney v. Berryhill, 728 F. App’x 687, 690 (9th Cir. 2018) (inconsistency 14 between claimant’s daily activities and therapist’s opinion is a germane reason 15 for discounting opinion); Morgan, 169 F.3d at 600-02 (an inconsistency 16 between opinion and a claimant’s daily activities may be a specific and 17 legitimate reason to discount the opinion). Indeed, during an examination, 18 Plaintiff reported to Dr. Bong Doan that he is able to live by himself and take 19 care of his mother, who lived nearby. AR 346; see also AR 54, 177. He 20 reported a history of adequate self-care skills, including dressing, bathing, 21 eating, toileting, and safety precautions. AR 346. He also shops, cooks, cleans, 22 and can drive. Id. Further, he reported handing his own financing, and playing 23 3 24 25 26 27 28 Plaintiff does not discuss this reason for discounting Ms. Middleton’s opinion (Jt. Stip. at 5-8, 14-16), including after it was raised by the Commissioner (Jt. Stip. at 12-13). See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (claimant waived issues not raised before the district court); Owens v. Colvin, 2014 WL 5602884, at *4 (C.D. Cal. Nov. 4, 2014) (claimant’s failure to discuss, or even acknowledge, ALJ’s reliance on certain reasons waived any challenge to those aspects of ALJ’s finding). 13 1 the bills. Id. These activities are in stark contrast with Ms. Middleton’s third- 2 party questionnaire and testimony of severe limitations. AR 23-24, 40-47, 186- 3 94. The ALJ properly relied on this factor. Finally, the ALJ properly discounted Ms. Middleton’s opinion because 4 5 she became closely entrenched in Plaintiff’s personal affairs. AR 23-34. The 6 ALJ noted it appeared Ms. Middleton became so closely involved that Plaintiff 7 became dependent upon her assistance and guidance. AR 23. The ALJ stated 8 this raised a question whether she could objectively assess Plaintiff’s 9 functioning, and whether she was a disinterested third party. AR 24. The 10 record supports the ALJ’s finding. As mentioned, Ms. Middleton testified she 11 helped Plaintiff by paying bills, preparing his “trial binders,” and calling the 12 “disability number” for him. AR 42-44. She also admitted that, even though it 13 was “not her job,” she would text him the night before, or the morning of, to 14 remind him about hearings and appointments. AR 44-45. She further stated 15 she would go through his bills and ask “what’s this payment for?” and inquire 16 whether he filed claims based on supplemental insurance payments. AR 45; 17 see also AR 61. The ALJ properly took Ms. Middleton’s entrenchment in 18 Plaintiff’s affairs into account when he assigned her opinion only “some” 19 weight. AR 23-24; See Greger, 464 F.3d at 972-73 (fact that witness’s “close 20 relationship” with claimant “possibly” influenced her desire to help him was a 21 germane reason to disregard testimony); Crane v. Shalala, 76 F.3d 251, 254 22 (9th Cir. 1996) (ALJ did not err in concluding that physician who helped 23 claimant apply for benefits was not able to be objective). The Court finds the ALJ did not err in assessing Ms. Middleton’s 24 25 26 27 28 opinion. Accordingly, reversal is not warranted. B. Plaintiff’s Subjective Symptom Testimony In Issue No. 2, Plaintiff argues the ALJ improperly discounted his subjective symptom testimony. Jt. Stip. at 16-19, 22-24. 14 1 2 1. Applicable Law Where a disability claimant produces objective medical evidence of an 3 underlying impairment that could reasonably be expected to produce the pain 4 or other symptoms alleged, absent evidence of malingering, the ALJ must 5 provide “‘specific, clear and convincing reasons for’ rejecting the claimant’s 6 testimony regarding the severity of the claimant’s symptoms.” Treichler v. 7 Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citation 8 omitted); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also 20 9 C.F.R. § 416.929. The ALJ’s findings “must be sufficiently specific to allow a 10 reviewing court to conclude that the [ALJ] rejected [the] claimant’s testimony 11 on permissible grounds and did not arbitrarily discredit the claimant’s 12 testimony.” Moisa, 367 F.3d at 885 (citation omitted). However, if the ALJ’s 13 assessment of the claimant’s testimony is reasonable and is supported by 14 substantial evidence, it is not the Court’s role to “second-guess” it. See Rollins 15 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Finally, the ALJ's credibility 16 finding may be upheld even if not all of the ALJ’s reasons for rejecting the 17 claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. 18 2. Analysis 19 At the 2017 hearing, Plaintiff testified he last worked three years ago as a 20 senior software engineer. AR 48-50. In that capacity, he developed software for 21 a casualty insurance company. AR 48, 50. He was in charge of development 22 and direction of design, mentoring and training upcoming developers, and 23 helping with managerial responsibilities. AR 50-51, 55-57. His job was socially 24 isolating; he worked in front of a computer in a cubicle and then later at home. 25 AR 54. He has a Bachelor of Science degree in quantitative methods. AR 52. 26 He stopped working due “a slow buildup of just falling apart[.]” AR 51, 60. He 27 started off as a casual, social drinker, and gradually became an alcoholic. AR 28 52-53. He achieved sobriety on July 1, 2016. AR 53. Since sobriety, he is 15 1 regaining clarity. AR 54. He stopped taking his anxiety medication because he 2 “didn’t like it,” and his psychiatrist relocated. AR 53, 59. He has a new 3 psychiatrist, but he hasn’t seen the doctor yet. AR 59. He sees Ms. Middleton 4 once or twice a week. AR 59. She helps him cope through his problems. AR 5 61. She also helps him with things like making payments and other things that 6 he “pretty much gave up on in life.” AR 61. He lives alone. AR 54. He doesn’t 7 think he can go back to work because he has trouble just making it from one 8 day to the next. AR 61. His thoughts are scattered. AR 61. He cannot do 9 normal things he used to do. AR 61. He has trouble managing his life. AR 61. 10 Plaintiff completed a function report in which he described symptoms 11 such as suicidal ideation, anxiety, difficulty completing tasks, diminished 12 concentration and focus, and social isolation. AR 19, 177-78, 182-83. He 13 required reminders to take medication and encouragement to clean up after 14 himself and do chores. AR 179. He was unable to pay bills in a timely manner 15 and spent most of his time at home sleeping. AR 177-78, 180-81, 183. For 16 social activities, he spent time with his therapist, psychiatrist, and son “once in 17 a while.” AR 181. He took medication that had no side effects. AR 184. 18 The ALJ found Plaintiff’s medically determinable impairments could 19 reasonably be expected to produce the alleged symptoms, but his statements 20 “concerning the intensity, persistence[,] and limiting effects of [the] symptoms” 21 were not “entirely consistent with the medical evidence and other evidence in 22 the record” (AR 19-20) because Plaintiff’s subjective symptom testimony was 23 inconsistent with: (1) the objective evidence and other evidence in the record; 24 (2) his lack of compliance with treatment recommendations; and (3) his daily 25 activities. AR 20-24. As explained below, the ALJ provided legally sufficient 26 reasons for discounting Plaintiff’s subjective symptom testimony. 27 28 First, the ALJ discounted Plaintiff’s symptom testimony because it was not entirely consistent with the objective medical evidence. AR 20. “Although 16 1 lack of medical evidence cannot form the sole basis for discounting pain 2 testimony, it is a factor that the ALJ can consider in his credibility analysis.” 3 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see also Rollins, 261 4 F.3d at 857. As explained above in Disputed Issue No. 1, objective medical 5 evidence, namely mental status examination findings by Dr. Litzinger and 6 other doctors, conflict with Plaintiff’s allegations of total disability. In light of 7 this evidence, the ALJ properly considered the inconsistency as one of at least 8 two valid factors supporting the decision to discount Plaintiff’s symptom 9 testimony. See Burch, 400 F.3d at 681. 10 Second, the ALJ discounted Plaintiff’s symptom testimony because he 11 failed to comply with treatment recommendations. AR 30. In assessing 12 credibility, “the ALJ may consider . . . unexplained or inadequately explained 13 failure . . . to follow a prescribed course of treatment.” See Molina, 674 F.3d at 14 1112; see also Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (same); 20 15 C.F.R. §§ 404.1530, 416.930. As detailed above, Plaintiff was advised by Dr. 16 Litzinger to strive for sobriety, and Plaintiff admitted to abandoning 17 medication so he could drink. Indeed, Plaintiff admitted to many mental 18 health professionals that he continued to drink while taking psychotropic 19 medications, and was generally not compliant, including to Dr. Michael 20 Tramell (AR 306-16, 335-36), Ms. Middleton (AR 243-243), and Dr. Doan 21 (AR 72, 75, 344-48). See also AR 287. Accordingly, the ALJ properly relied on 22 Plaintiff’s failure to follow treatment recommendation. See Molina, 674 F.3d 23 at 1112; Bunnell, 947 F.2d at 346; Edlin v. Colvin, 2014 WL 5500311, at *5 24 (E.D. Wash. Oct. 30, 2014) (ALJ properly relied on claimant’s lack of 25 compliance with treatment, in discounting credibility). 26 Plaintiff asserts that the ALJ did not use non-compliance with treatment 27 as a rationale for discounting Plaintiff’s complaints; rather, Plaintiff argues, the 28 ALJ was merely summarizing the record. Jt. Stip. at 23 (citing AR 20). 17 1 However, the ALJ did in fact tie Plaintiff’s failure to comply with treatment 2 directives with the ALJ’s conclusion regarding Plaintiff’s complaints, stating 3 “[Plaintiff’s] continued use of alcohol and other illegal substance prior to his 4 sobriety date suggest a possible unwillingness to do what is necessary to 5 improve his condition and renders his current allegations of disabling 6 psychiatric symptoms unpersuasive.” AR at 22. 7 Third, although not entirely clear, the ALJ appears to have also relied on 8 Plaintiff’s daily activities in discounting Plaintiff’s subjective complaints. AR 9 24. To the extent the ALJ did rely on this factor, Plaintiff contends the ALJ 10 failed to make requisite findings of their application in the work setting 11 necessary to support a credibility finding. Jt. Stip. at 18, 24. See Martinez v. 12 Berryhill, 721 F. App’x 597, 600 (9th Cir. 2017) (ALJ improperly “discounted 13 [claimant]’s testimony based on her daily activities . . . [without] support[ing] 14 the conclusions as to the frequency of those activities or their transferability to 15 the workplace.”); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (ALJ must 16 make “specific findings related to [the daily] activities and their transferability 17 to conclude that a claimant’s daily activities warrant an adverse credibility 18 determination”). 19 Here, without reaching the issue, even if the ALJ erred in failing to make 20 the findings required for a credibility determination, as long as there remains 21 “substantial evidence supporting the ALJ’s conclusions” and the error “does 22 not negate the validity of the ALJ’s ultimate [credibility] conclusion,” the error 23 is deemed harmless and does not warrant reversal. Batson, 359 F.3d at 1195- 24 97; Williams v. Comm’r of Soc. Sec. Admin., 2018 WL 1709505, at *3 (D. Or. 25 Apr. 9, 2018) (“Because the ALJ is only required to provide a single valid 26 reason for rejecting a claimant’s pain complaints, any one of the ALJ’s reasons 27 would be sufficient to affirm the overall credibility determination.”). As there 28 are at least two other bases for the ALJ’s discounting of Plaintiff’s subjective 18 1 symptom testimony, the Court does not consider the purported basis based 2 upon inconsistency with activities of daily living. 3 The Court finds the ALJ provided sufficiently specific, clear, and 4 convincing reasons for discounting Plaintiff’s symptom testimony, specifically, 5 the conflict with objective medical evidence and Plaintiff’s noncompliance 6 with treatment. Those grounds, together, are sufficient to affirm the ALJ’s 7 decision on the issue. 8 IV. 9 ORDER 10 IT THEREFORE IS ORDERED that Judgment be entered affirming 11 the decision of the Commissioner and dismissing this action with prejudice. 12 13 Dated: November 06, 2018 14 ______________________________ JOHN D. EARLY United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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